July

Lawyers Journal

The grass may seem greener

By Aloke Chakravarty

July 2011

As we continue to search for sensible and considerate
drug-enforcement policies, lawyers play a crucial role in
previewing the likely practical impact of such changes on the
criminal process. An important lesson about the necessity of such a
debate can be drawn from the Supreme Judicial Court's recent
interpretation of a law created through the direct democracy of a
2008 ballot-referendum which decriminalized, rather than legalized,
small quantities of marijuana.

In Commonwealth v. Benjamin Cruz1 the SJC
essentially reiterated the law of unintended consequences. In Cruz,
the Court held that because the odor of marijuana is no longer
indicative that criminal activity is afoot, any evidence
seized as a result of the longstanding police practice of searching
someone suspected of possessing marijuana is inadmissible. Missing
from the debate leading to the law, however, was discussion of how
the change would affect the ability to detect crime more
generally.2

Practitioners know that valuable evidence of serious criminal
offenses involving violent crimes, drug trafficking and firearms,
among others, is routinely uncovered when investigators are
permitted to track the scent of pot. A change in police procedure
may help clear the docket of minor marijuana possession
prosecutions, but will unintentionally jettison evidence of much
more serious offenses in the process. Nevertheless, the Court
concluded that "[i]t is unreasonable for the police to spend time
conducting warrantless searches for contraband when no specific
facts suggest criminality."3

In an effort to effectuate the referendum's presumed intent, the
Court's considered use of the phrase "to spend time" signaled an
expansion of its traditional role of assessing the reasonableness
of a search into one which assesses the reasonableness of the
executive's prioritization. While it is not clear that this was the
type of policy calculus that gave rise to the exclusionary rule as
articulated in Mapp v. Ohio,4 the Court drew a
bright line which impacts far more than mere marijuana
possession.

Whether rightly decided or not, the Cruz decision
highlights that the collateral practical and procedural
implications should be part of the legislative debate, and
practitioners must inform it.

One of the foreseeable areas which can benefit from such foresight
is in the treatment of so-called "low-level" drug dealers.
Underlying a move for alternative sentencing of nonviolent drug
offenders is the appeal of the growing body of literature that
shows extended incarceration is neither efficient nor effective for
some drug defendants. The reform of mandatory-minimum and drug
sentencing could hang in the balance.

Since many drug defendants fit somewhere on the spectrum between
the personal-use drug abuser and the drug kingpin, the appropriate
punishment should avail the growing social science, while also
considering the entire dossier of the defendant's position, past
and prognosis.

Reform should therefore include relief provisions such as safety
valves and other mechanisms for departures to ensure the punishment
and rehabilitative options fit the crime and the criminal. However,
we must also recognize there is a systemic cost to the relaxing of
drug dealer sentencing. Abandoning the likely risk of substantial
incarceration for drug dealers altogether could degrade deterrence
and debilitation, as well as the incentive to avail perhaps the
most effective tool for mitigation, which is cooperation with law
enforcement.

Seldom discussed publicly, cooperation by individuals with
knowledge of serious crimes is the lifeblood of proactive law
enforcement. This is especially true for drug distribution
networks. While perhaps imperfectly police-centric, cooperation
expands the dossier and creates flexibility for the parties and the
courts to consider the net effects of the defendant's criminal and
remedial conduct. Only through cooperation can law enforcement
penetrate criminal organizations and obtain search warrants,
wiretaps and direct evidence against the most serious criminals,
whether in the drug trade or of other serious crimes. Without
providing powerful incentives to cooperate, such kingpins and
commanders will continue to be insulated by armies of "low-level"
drug dealers and others who practitioners frequently recognize as
economic pawns.

Reform should therefore encourage cooperation without penalizing
those who genuinely cannot.5 All sides must recognize
that increasing the selectivity of the drug cases in our courts and
convicts in our jails begins with understanding how integrated the
law, the ecosystems on our streets, and law enforcement really are,
and we should explain that dynamic responsibly to the public.

1 945 N.E.2d 899 (Mass. 2011).

2 The only discussion of implications on other aspects
of criminal procedure dealt with the proponents' expectation that
the police would be "freed up" by the new law to focus on other,
more serious crimes. Commonwealth v. Benjamin Cruz, 945
N.E.2d 899, 908-09 (Mass. 2011). (citing Information for Voters:
2008 Ballot Questions, Question 2: Law Proposed by Initiative
Petition, Possession of Marijuana).

3Id. at 913.

4367 U.S. 643 (1961).

5 See Roberts v. U.S., 445 U.S. 552, 558
(1980) (recognizing cooperation, absent privilege against
self-incrimination, as an obligation of community life antecedent
to rehabilitation).